Teubert v. Kessler

Decision Date29 February 1924
Docket Number3054.
Citation296 F. 472
CourtU.S. Court of Appeals — Third Circuit

William C. Gebhardt & Son, of Clinton, N.J., for appellant.

Israel B. Greene and William Harris, both of Newark, N.J., for appellee.

Before WOOLLEY and DAVIS, Circuit Judges, and THOMSON, District Judge.

DAVIS Circuit Judge.

On September 14, 1921, Louis E. Teubert, Jr., recovered a judgment at law against Fred Kessler for $5,000 on account of the negligent operation by Kessler of an automobile, which struck the plaintiff while riding a motorcycle, and seriously injured him. On December 5, 1922, Kessler filed a voluntary petition in bankruptcy and scheduled about $100 as his only assets and this judgment as his liabilities. In due time he filed a petition for his discharge in bankruptcy. The appellant filed specification of objection, wherein he set up this judgment as a bar to the discharge. The bankrupt thereupon moved to strike out this specification of objection.

The petition for discharge and this motion were the sole issues before the court. If the judgment was a bar to the discharge the appellant should have prevailed on his motion; otherwise the specification should have been stricken out. Congress has expressly declared in section 14 of the Bankruptcy Act (Comp St. Sec. 9598) what bars a discharge in bankruptcy. The judgment founded on the tort declared upon in this case does not come within the purview of that section, and so the objection was properly stricken out and the bankrupt discharged.

But the court went further, and held that the judgment was a provable debt and dischargeable in bankruptcy. The decree--

'perpetually restrained and enjoined (the petitioner) from taking any steps in execution or any other proceedings, either at law or in equity, the courts of the state of New Jersey or in this court, under said judgment, except to file and prove said judgment with the trustee of said bankrupt as a debt of his estate.'

The right to a discharge and the effect of a discharge are wholly distinct propositions. Section 14 of the Bankruptcy Act fixes the right to a discharge, and section 17 (Comp. St. Sec 9601) the effect of a discharge. The question before the court was the right and not the effect of the discharge. The proper time and place for the determination of the effect of a discharge is when the discharge is pleaded or relied upon by the debtor as a defense to...

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11 cases
  • First Nat. Bank v. Haymes
    • United States
    • New York City Court
    • 1 April 1966
    ...question or prejudice in any way the later decision of that question by another court. In re Bernard, 2 Cir., 280 F. 715; Teubert v. Kessler, 3 Cir., 296 F. 472; In re Kolsrud, D.C.Minn., 34 F.2d 831; In re Andrews, D.C.Cal., 47 F.2d 949; In re Millkofsky, D.C.N.Y., 17 F.Supp. 127; In re Su......
  • Swanson v. Plowfield.
    • United States
    • New Jersey Supreme Court
    • 13 May 1943
    ...the discharge, but the effect thereof is to be passed upon exclusively in the court in which the discharge may be pleaded. Teubert v. Kessler, 3 Cir., 296 F. 472; In re Bernard, 2 Cir., 280 F. 715; Youngman v. Salvage, supra. This proposition was modified to a limited extent in the later ca......
  • In re Johnson
    • United States
    • U.S. District Court — District of New Jersey
    • 4 October 1962
    ...pursuing the appropriate appellate proceeding but not by instituting ancillary proceedings in the Court of Bankruptcy. Teubert v. Kessler, 296 F. 472 (3rd Cir., 1924) and Watts v. Ellithorpe, 135 F.2d 1 (1st Cir., It is, however, well settled that a Court of Bankruptcy has, in furtherance o......
  • In re Scandiffio
    • United States
    • U.S. District Court — Eastern District of New York
    • 17 October 1945
    ...in which that claim is sought to be enforced and is not the concern of the bankruptcy courts. In re Bernard, supra; Teubert v. Kessler, 3 Cir., 1924, 296 F. 472; In re Cosmopolitan Bond & Mortgage Co., 7 Cir., 1935, 79 F.2d 547, certiorari denied 296 U.S. 657, 56 S.Ct. 382, 80 L.Ed. 468; In......
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